Eliason: Report isn't a referral for impeachment

By RANDALL ELIASON

Tuesday

Apr 23, 2019 at 2:00 AM

In their initial reading of the Mueller report, many people have focused on the following sentence: "The conclusion that Congress may apply the obstruction laws to the President's corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law."

Some commentators have read this as special counsel Robert Mueller, who was prohibited by Justice Department policy from indicting the president, essentially calling on Congress to exercise its impeachment power. But this particular remark is being misinterpreted.

The line appears in a legal analysis section, where Mueller's team is responding to arguments made by the president's attorneys. One of the Trump team's primary arguments was that it would be unconstitutional to charge a president with obstruction of justice for otherwise authorized executive actions, such as firing the FBI director or ordering that an investigation be shut down, no matter how corrupt the president's motives.

This was also a central argument in the 19-page memo on obstruction that Attorney General William Barr sent to the Justice Department back in 2018, when he was a lawyer in private practice. Barr claimed the theory that a president could be charged with obstruction for such actions was "fatally misconceived" and would do "lasting damage to the presidency" if adopted.

Mueller's memo vigorously shreds the argument advanced by the man who later became the special counsel's boss. In a detailed legal analysis, Mueller notes that the separation of powers does not prevent Congress from criminalizing corrupt actions by a president, such as bribery or suborning perjury:

"The Constitution does not authorize the President to engage in such conduct, and those actions would transgress the President's duty to 'take Care that the Laws be faithfully executed,' " set forth in the Constitution. The same is true, Mueller concluded, of the laws against obstruction of justice.

Nor does the Constitution prohibit a criminal inquiry into the president's intent, as Barr and others have argued. Mueller noted that there is no question the president can be criminally liable for crimes such as bribery, even though bribery also requires proof of corrupt intent. There is no constitutional basis to treat the laws against obstruction of justice any differently.

Finally, Mueller rejected the claim that enforcement of obstruction of justice laws would have a chilling effect on the president's lawful exercise of his authority. Mueller noted that presidents are very rarely the subject of grand jury investigations, and that the requirement of corrupt intent makes it even more rare for the president's actions to give rise to a suggestion of obstruction of justice. The president's legitimate conduct in office, he concluded, would not be chilled by the remote possibility of an obstruction of justice probe.

This is the context in which Mueller concluded that "Congress may apply the obstruction laws" to the president's conduct.

He wasn't calling on Congress to pick up the ball and convene impeachment hearings. He was stating his legal conclusion that it is constitutional for Congress to enact obstruction of justice laws that apply to a president's official actions carried out for a corrupt reason — just as it would be a constitutional exercise of the separation of powers for a federal court to adjudicate such a case.

It would have been surprising if Mueller's report had affirmatively suggested Congress should take up impeachment. A federal prosecutor charged with investigating possible crimes would recognize that is not his role and would consider such a suggestion to be coloring way outside the lines. And Mueller is nothing if not a consummate "inside the lines" guy.

Impeachment is a political process, not a criminal one. Mueller may or may not personally believe that impeachment would be appropriate. If Congress decides to move forward with impeachment, Mueller's report will of course be a primary source of relevant information.

But although the report may read like an impeachment referral, Mueller, of all people, knows that was not his job.

Randall Eliason teaches white-collar criminal law at George Washington University. He wrote this for the Washington Post.

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